INTRODUCTION
"The sky above the port was the color of television, tuned to a dead channel."
– William Gibson, Neuromancer (1984).
Regarded as the earliest and best-known works in the cyberpunk genre, through Neuromancer, Gibson introduced a world immersed in technology, where the boundaries between the virtual and real world are blurred, and aspects of identity and reality remain as intangible as the flickering signals on a screen. Just as Gibson's protagonist zealously attempt to navigate a dystopian and ever-evolving cyberpunk landscape, the Indian media and entertainment industry is going through a similar phase. Be it Vishnu Manchu's efforts to protect his likeness in the cyberspace (including the Metaverse!), the JioHotstar cybersquatting issue, or the Delhi High Court's inquiry on the use of AI to create deepfakes, they all echo Neuromancer's cautionary tale about the significance of maintaining order amidst the rise of technology.
Against this backdrop, we present to you, Volume XXVI of IndusLaw's The Recap, a round-up of legal updates for the media & entertainment and gaming industries. This edition covers updates from 1 September 2024 to 31 October 2024.
MEDIA AND ENTERTAINMENT UPDATES
Adherence to due diligence requirements by intermediaries
The Ministry of Electronics and Information Technology ("MeitY") issued an advisory directing intermediaries to take prompt action and remove 'prohibited information' from their platforms at the earliest possible opportunity, in compliance with due diligence obligations under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules 2021"). The MeitY also directed intermediaries to complete the takedown process proactively and at the earliest possible opportunity, and not wait for the expiry of the time limits prescribed under the IT Rules 2021. This direction by the MeitY came after the Bombay High Court's ("Bombay HC") direction to social media platforms to remove deepfakes of the Managing Director of the National Stock Exchange, Ashishkumar Chauhan ("Mr. Chauhan"), and also added that such social media platforms must remove the content within 10 (ten) hours (and not exceeding 14 (fourteen) hours) of the complaint being sent by Mr. Chauhan.
Separately, the MeitY also directed social media platforms to adhere to due diligence obligations outlined under Rule 4 of the IT Rules 2021 which imposes certain additional obligations on 'significant social media intermediaries' which inter alia include publishing of periodic compliance reports every month, mentioning certain details including the details of complaints received and action taken. These advisories and directions are in line with the efforts of the Central Government's increased scrutiny of intermediaries.
You can read the MeitY advisory and the Bombay HC order which is annexed as a part of this advisory here.
You can read more on this development as reported by StartupNews and Moneycontrol here and here.
Strengthened efforts to safeguard children on social media platforms persist
In an effort to effectively address issues pertaining to the protection and safety of children online, the National Commission for Protection of Child Rights (NCPCR) met with representatives of major social media platforms including companies like YouTube, Meta, X, etc. Measures of protecting children including age verification and adopting tools for identifying and blocking child sexual abuse material ("CSAM"), were discussed, with emphasis given on the adoption of mandatory Know Your Customer ("KYC") procedures to verify user identity on platforms and mandatory reporting of CSAM under the Protection of Children from Sexual Offences, Act, 2012 ("POCSO"). Further discussions on enhanced safety features were also undertaken, such as parental consent for minors entering into contracts on social media platforms, and proper disclaimers on adult content, with the focus remaining on keeping children safe from predators and explicit content.
You can read more about this development as reported by the Economic Times here.
The Curious Case of Complan and how much sugar is good sugar
The Delhi High Court ("Delhi HC") ordered influencer Prashant Desai ("Defendant") to remove a video disparaging the nutritional drink of Zydus Wellness ("Plaintiff"), Complan. In essence, the Defendant had published a video on his social media platform pointing out the high sugar content in Complan and stated that it is very harmful for children. The Plaintiff argued that not only was the video unsubstantiated and baseless impacting the goodwill of the Plaintiff, but also violative of the Guidelines for Influencer Advertising in Digital Media in India, released by the Advertising Standards Council of India ("ASCI"), which requires influencers putting out posts relating to health and nutrition, to have necessary medical qualifications and certifications.
While the Delhi HC did not answer whether the ASCI guidelines are mandatory, it observed that the Defendant did not possess the relevant qualifications as had been prescribed in the guidelines for making posts of this nature. The Delhi HC also held that the statements made by the Defendant in their video were false and concluded that the Plaintiff was able to make out a prima facie case that the video of the Plaintiff was detrimental to the goodwill/ character of the Plaintiff's product, Complan.
You can read more about this development as reported by the Hindu here.
You can access the order of the Delhi HC here.
SC expands the scope of penal provisions under POCSO
The Supreme Court ("SC") recently clarified that viewing, downloading and storing of online sexual material regarding children are offences under POCSO. The SC pronounced this judgement further to an appeal filed before it against a Madras High Court ("Madras HC") order setting aside criminal charges under POCSO against a man, who was sought to be prosecuted for viewing and storing video clips featuring children being exploited for sexual acts.
The SC held that the Madras HC's decision was erroneous and observed that specific provisions of the POCSO penalise the failure to delete, destroy or report child abuse material, found to be stored or in possession of any person with an intention to share or transmit it. It also invoked the concept of 'constructive possession' and clarified that physical possession is not necessary for invoking penal provisions under POCSO.
The judgment dated 23 September 2024 passed by the Supreme Court can be accessed here.
You can read more about this development as reported by the Hindu here.
MIB's Fact Check Unit declared unconstitutional
The Bombay HC struck down the amended rules under the IT Rules 2021 that empowered the Ministry of Information and Broadcasting ("MIB") to set up a fact check unit to identify fake, false and misleading news on social media platforms. A division bench of the Bombay HC had previously rendered a split verdict, and a third judge gave the deciding opinion and stated that the amended rules were ultra vires to the Indian Constitution. It was observed that the terms 'fake', 'untrue', or 'misleading' were vague and wrong, and in the absence of any definition, the rule could result in a chilling effect 'qua an intermediary'.
The judgment dated 20 September 2024 passed by the third judge of Bombay HC can be accessed here.
You can read more about this development as reported by the Hindu here.
Delhi HC directs social media intermediaries to submit their standard operating procedure for dealing with information requests from the police
A division bench of the Delhi HC, comprising Justices Prathiba Singh and Amit Sharma (the "Bench"), directed social media intermediaries, including Google, Meta, Reddit, LinkedIn, WhatsApp, and Telegram (collectively "SMIs"), to submit their standard operating procedures ("SOPs") for handling police information requests. The Bench, while hearing a case titled Shabana v. Govt. NCT of Delhi & Ors. concerning a missing child, noted delays in Meta's response to a police request on 6 September 2024 for information related to the missing child's Instagram account, which remained unfulfilled until 19 September 2024.
The Bench also highlighted delays in other habeas corpus cases and emphasized the need for prompt information sharing by SMIs to assist in tracing missing persons, particularly minors. Further, the Bench urged the SMIs to establish clear timelines and provide investigating officers with necessary guidelines for promptly monitoring and downloading information. In view of these observations, the Bench directed the SMIs to submit their respective SOPs for law enforcement requests, including specific timelines for responding to such requests. At the next hearing on 20 October 2024, the Bench observed that the SMIs would file their SOPs by 25 October 2024 and listed the matter for further proceedings on 28 October 2024.
On 28 October 2024, the Bench noted that SMIs namely Google, Meta and WhatsApp, had submitted their SOPs. The Bench observed that the SMIs did not provide specific timelines for responding to critical information requests from law enforcement agencies regarding missing persons and bomb hoaxes. The Bench also noted that under IT Rules 2021, the SMIs are required to acknowledge information requests from law enforcement agencies within 24 (twentyfour) hours and to provide information 'as soon as possible,' but no later than 72 (seventy-two) hours. Additionally, the Bench emphasized that processing requests from law enforcement agencies cannot be overly complex.
In light of this, the Bench has directed the SMIs to file improved affidavits detailing their timelines for responding to such requests within two (2) weeks. The court is set to hear the matter next on 11 December 2024.
Copies of the order dated 20 September 2024 , 20 October 2024 and 28 October 2024 passed by the Delhi HC can be viewed here , here and here.
Delhi HC steps in: Actor/producer Vishnu Manchu's personality rights get interim protection across social media (even in the Metaverse)
The Delhi HC issued an ex-parte interim order on 1 October 2024 in favour of actor and producer Vishnu Manchu ("Plaintiff") in his suit titled Manchu Vishnu Vardhan Babu Alias Vishnu Manchu v. Arebumdum & Ors. against various YouTube channels to protect his personality rights. The Plaintiff's claims include defamation, copyright infringement (including moral rights), misappropriation of his personality/ publicity rights, and passing-off. This suit was initiated after the Plaintiff found that clips from his performances and interviews were altered across multiple YouTube channels ("Respondents") using machine learning to morph or superimpose his face, resulting in videos that ridicule him.
The Plaintiff argued that his name, voice, image, and other personal attributes have acquired unique distinctiveness and commercial value. The Plaintiff asserted that the Respondents covertly misused these attributes, infringing upon his personality and publicity rights. Additionally, the Plaintiff alleged that the Respondents defamed him by (i) comparing his image to animals; (ii) morphing his face and distorting expressions; (iii) publishing content with profane language; (iv) monetizing defamatory videos; and (v) using his name in explicit videos.
In light of the Plaintiff's contentions, the Delhi HC observed that the Plaintiff has established a prima facie case for the grant of a permanent injunction and consequently passed the ex-parte order directing, among other things, the Respondents (including John Does), to refrain from creating, publishing, or disseminating any content that defames the Plaintiff and to cease infringing upon the Plaintiff's personality rights by any direct or indirect use, exploitation, or misappropriation of the Plaintiff's persona, which includes (a) his name, "Vishnu Manchu,"; (b) his voice; (c) his image; or (d) any other distinctive attribute exclusively associated with him. In the event that Respondents do not comply with the order, the Delhi HC has directed YouTube to take necessary steps to take down the infringing content. The Delhi HC further stated that this injunction extends to the unauthorized use of these attributes for any commercial or personal gain across all formats and mediums, including emerging mediums such as the metaverse, and any future mediums, without the Plaintiff's consent or authorisation.
The matter is next listed on 22 January 2025 for further proceedings.
A copy of the order dated 1 October 2024 passed by the Delhi HC can be viewed here.
Delhi HC seeks a status report from the Central Government on the measures taken to prevent deepfakes
The Delhi HC is currently hearing two PILs filed by advocate Chaitanya Rohilla and a prominent Indian journalist, Rajat Sharma, seeking regulatory measures to combat deepfakes. While hearing the PILs, the Delhi HC reportedly expressed concerns over the misuse of deepfake technology, which can distort reality and further be exploited to spread misinformation, potentially harming an individual's reputation and public trust. In this context, the court directed the Central Government to submit a status report on whether a dedicated committee has been formed for establishing guidelines for regulating deepfake technology, or risk having one appointed by the court. The court also reportedly highlighted the need for regulation of artificial intelligence ("AI"), acknowledging that banning AI is impractical, and stressed that specific regulations are needed to address the threat posed by deepfake technology. On 21 November 2024, the Central Government submitted its status report which principally stated that a committee on deepfakes ("Committee") has been constituted. The court directed the Central Government to name its nominees for the Committee, which will examine the issue and endeavour to submit a report within three (3) months. The matter has now been listed for the next hearing on 24 March 2025.
The order dated 21 November 2024 passed by the Delhi HC can be viewed here.
The media coverage on the above development as reported by Hindustan Times and Indian Express can be viewed here and here.
To view the full article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
